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Impartial public servants deserve their freedom of tweets

If Sir Tim Berners-Lee was a public servant, his praise of the NBN could have been unlawful.

If Sir Tim Berners-Lee was a public servant, his praise of the NBN could have been unlawful. Photo: BRENDAN ESPOSITO

"The national broadband network is a wonderful commitment to getting everyone connected." If you're a public servant, I dare you to post this on the internet – say, via Facebook or Twitter. I'll give you extra kudos if you use your real name.

So what's the catch? Surely, it's an inoffensive opinion that's held by many people – perhaps even a majority of Australians. How could it possibly land a public servant in trouble?

That comment was made by the "inventor of the internet", Sir Tim Berners-Lee, before last year's federal election. At the time, the NBN was among the policies that most clearly differentiated Labor from the Coalition. Berners-Lee also described the NBN as a "brilliant foundation" for Australia.

Now, I admit I'm drawing a rather long bow here, but one could mount a case that, had a public servant posted that opinion online, they would have breached the Public Service Act. How? The act requires all APS staff to be "impartial" and "apolitical". And the Public Service Commission's guidelines on online comment – which again fell under critical scrutiny this month – say public servants should refrain from expressing an opinion that is "so harsh or extreme in its criticism of the government, an MP from another political party, or their respective policies, that it raises questions about the APS employee's capacity to work professionally, efficiently or impartially".

It's easy to see how someone, for whatever purpose, could dress up apparently innocuous praise of the NBN as "extreme" commentary. In the context of an election campaign in which the NBN was a bitterly contested policy, describing it with epithets such as "wonderful" and "brilliant" could be seen to imply strong criticism of the Coalition, which campaigned against it.

And here we see one of the many problems with the bureaucracy's efforts to control how public servants express (and suppress) their political views. The guidelines do not clearly distinguish what "harsh or extreme" means, nor is there much case law to clarify that. If a politician, or even a member of the public, questions a public servant's impartiality, that may be all it takes for a disciplinary investigation to commence.

Of course, in practice, few public servants will be affected by the bureaucracy's social media policies. Like the labels that remind us not to swallow batteries, or the signs McDonald's uses to warn customers that its coffee is hot, workplace rules are often designed with the most unlikely cases in mind. Most public servants, even those with strong political views, manage to express their opinions in ways that don't undermine perceptions of their professionalism. The government's broad guidelines give agencies and managers the discretion to decide when a staff's comments go too far. Most public servants who voice a strong political opinion will not be questioned about it, let alone disciplined for doing so.

Yet wherever discretionary power exists, so too does the opportunity to abuse that power. And, in the absence of clear rules that set out public servants' rights, and which  distinguish a "harsh" political comment from an acceptable opinion, the guidelines will almost certainly be applied inconsistently.

It's a pity that one of the first attempts to test the legality of the government's social media guidelines was, in many ways, such an imperfect case. The Immigration Department began the process of sacking an employee, Michaela Banerji, in 2013, and the matter dragged through various stages, courts and tribunals until the two parties settled last month. Banerji had used a pseudonymous Twitter account to criticise refugee detention policies; that is, her tweets not only expressed her political beliefs but reflected on her employer, too. Also, while at the department, she had continued working in a second job as a psychoanalyst beyond the period for which she had formal approval. Court records show she had a "history of workers' compensation claims", had complained formally about "adverse treatment in her workplace" and had accused her boss, Sandi Logan, of bullying her. Clearly, her relationships with colleagues were less than ideal. She also described herself as a "conscientious objector" to immigration detention, suggesting it could be difficult for her to argue she was impartial in her work.

Nonetheless, in arguing against her dismissal, she said policies that prevented public servants from voicing their personal views breached their freedom of political expression, which the High Court has found is an implied right in the constitution. Unfortunately, the Federal Circuit Court did not examine this argument in detail.

At some point in future, a public servant will find themselves under investigation for expressing personal political views and, unlike Banerji, those views will not relate directly to their work. A court will then need to tackle the question that Banerji raised and make a clear ruling on public servants' constitutional rights.

The commonsense solution is, of course, to judge government employees by how they perform at work, not by what they say and do in their private lives. Public Service Commissioner Stephen Sedgwick said this week "we want public servants who will be ‘of the community' and no doubt public servants will share in the spectrum of beliefs that are found in the community". In justifying the policy encouraging staff to self-censor their views, he warned that posting opinions online "can have far-reaching consequences". Yet we are left to guess what those special consequences could be.

If Sedgwick were to apply his logic consistently, he would seek to ban public servants from joining political parties, too. After all, signing up to a party is one of the most extreme ways a citizen can express their political partiality – it's certainly a more radical step than any tweet or Facebook post. Sedgwick won't suggest it, of course, because he knows public servants have, for decades, managed to be both party members and excellent employees.

I know public servants who are  passionate (dare I say "extreme") supporters of Labor, the Liberals and the Greens. They do their jobs to the best of their ability, regardless of who is in power and what they say outside work. I dare say most Canberrans know such people. Sedgwick need not fear them. They will not destroy the integrity of the public service, because they are its integrity.

Markus Mannheim edits The Public Sector Informant.

29 comments so far

  • Of course public servants should be free to comment on their department and minister. They are neutral, and therefore their comments are. Their comments in private would in no way reflect on their work, because they are righteous. They wouldn't bully lower ranking staff with their views, as has been found by ComCare. Public servants are lowly paid too !!!! I cant figure out why the ACT has the highest per capita income in the country - must be lots of rich builders, plumbers and shop assistants. The public service needs a 5% pay rise now !!!!!!

    The Village Idiot (Reformed)
    Date and time
    April 17, 2014, 1:43PM
    • I agree!! Public servants are expected to be impartial (just like their ABC brethren) and once they start making public comments supporting one party or a parties policies they have lost any moral claim to impartiality.

      If they want to make public statements about parties and their policies or anything else to do with the running of government they are more than welcome to quit their job and work in the private sector.... if they can get a job with the same pay and perks which is highly doubtful. Until then, they can keep their opinions to private conversations with their colleagues and friends.

      Date and time
      April 17, 2014, 2:03PM
    • This is one of the more ridiculous comments I've come across recently.

      For starters, I can't believe this is still being discussed. This is no different to any other organisation requiring their staff to not slander them publicly while they are employed by them. Not a unreasonable request given they are paying your bills and you choose to work for them. Saying this is the same as restricting staff from joining a political party is drawing a very long bow.

      "The public service needs a 5% pay rise now!!!"

      Canberra public servants have it very good. Good pay, flex time, several avenues for leave to name a few perks. It is not the responsibility of the public service to adjust your pay simply to suit your chosen lifestyle. If you want a pay rise, make yourself more valuable to the organisation and put your hand up for more responsibilities. Do some extra study or a certification. The question I would ask is what have you done to deserve that 5%? I expect the answer would be nothing....and coming to work and doing your 9 to 5 is not justification for a pay rise.

      You are not entitled to a job, you earn it by having a skill set that is valuable to someone.

      Date and time
      April 17, 2014, 2:59PM
    • Simon, i think you missed the fact that the Village Idiot was being very sarcastic.

      Date and time
      April 17, 2014, 3:57PM
    • @Simon

      In my humble opinion, you have managed to undermine your own argument in the very last sentence of you post, and I quote " You are not entitled to a job, you earn it by having a skill set that is valuable to someone".

      Frankly, members of the public who possess a skill set that is valuable to and who are hired by the public service sector should not have their rights to free speech abrogated as a result of their employment as a public servant. I mean, the author does suggest that it (free speech) is an implied right under the constitution.

      And on final note, I don't care who is in power, I simply want to see good governance. When I don't, I am inclined to speak up and frankly don't see any problem with that. Politician's are amply rewarded and need to grow a spine. Censoring the public service to merely preclude potential embarrassment is hardly a pragmatic position to take.

      Date and time
      April 17, 2014, 4:05PM
    • @BAG I hope you're right.

      @StopTheBleeding Your argument makes no sense. Don't quote someone then ramble on with something unrelated to said quote. Also, in regards to your "not have their rights to free speech abrogated", you obviously have no comprehension of the concept of "free speech". Free speech is only impeded upon if you are prevented from having an opinion by law. Free speech is a legal concept. Asking that an organisation's employees do not slander their employer while employed at the organisation is not a breach of free speech, it is a condition of employment, and one of many that you agree to abide by while employed by said organisation.

      Date and time
      April 17, 2014, 6:34PM
    • All public sector workers should not be allowed to vote, conflict of interest......they work to serve the private tax payer hence the name Public Servant.

      Date and time
      April 20, 2014, 10:15AM
  • The public service is simply applying a framework not uncommon in private sector organisations. It is a common sense rule - don't publicly sledge off the organisation paying your wages. It just happens that public servants have a different role that requires them to be a bit more discerning about what they put out there for the world because they are paid by tax payers to deliver the policies of a democratically elected government.

    Some sanity needs to come back into this debate - if you are a contentious objector of a particular policy that is close to your employment with the public service it might be best to review where you have chosen to work. Similarly - if you want to tweet negative comments about a politician (whether or not related to your work area) you might want to think about how that might be perceived by the tax payers who are paying your salary to deliver the policies of the government they elected.

    The same thing would apply if you were employed privately - if you worked for a particular bank and started publicly sledging the board and CEO, I suspect you might not be employed by that bank for much longer. Some of the big consultancy companies also have pretty strict rules about protecting their "brand" from employee bad mouthing. At the end of the day - public servants are paid well and in return the public (and elected members of parliament) have a right to hold public servants to a high standard when it comes to public comments.

    Date and time
    April 17, 2014, 2:35PM
    • What of political parties, yawny? I assume, from your argument, that public servants shouldn't join any political party or social movement? After all, what would happen if taxpayers discovered that the public servant was a party member?

      Markus Mannheim
      Date and time
      April 17, 2014, 2:37PM
    • As long as they didn't publicly advertise their membership of party affiliation i can't see a problem. If they want to be publicly active for and on behalf of a party that is a different matter and they can resign their PS job in order to do so. They can work for the party or for the private sector.

      Date and time
      April 17, 2014, 3:05PM

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